2nd Court of Appeals affirms conviction of former police detective

The 2nd Court of Appeals in Fort Worth has affirmed the 2009
murder conviction of former Denton police detective Robert "Bobby"
Lozano.

Lozano, 47, was sentenced to 45 years in prison for the shooting
death of his wife, Virginia "Viki" Lozano, and has been
incarcerated while waiting for his appeal decision.

He must serve half the sentence before becoming eligible for
parole.

His attorney, Gary Udashen, said Friday that he would appeal the
case to the Texas Court of Criminal Appeals.

"I have not had time yet to read the opinion, so I can't comment
on it," Udashen said. "But we definitely will appeal farther."

Members of the Denton County District Attorney's Office were
happy with the ruling.

"We are thrilled that the Court of Appeals has affirmed Bobby
Lozano's conviction for murdering his wife, Viki," spokeswoman
Jamie Beck said. "Of course, it is the outcome we expected - we
just had to wait quite a while to get it."

Bobby Lozano was having an affair with a female police detective
in July 2004 when his wife died in their bed of a gunshot wound to
the chest.

The paramour testified during his trial that she had ended the
relationship after months of his postponing a promised divorce.

Several witnesses testified that Lozano would never have sought
divorce from his wife of 18 years because of her family wealth and
his taste for expensive living and the Montecito home they lived in
with her mother.

Viki Lozano's mother, Anna Farish, testified in his defense, and
he continued to live with her until his conviction.

Bobby Lozano told police that on July 6, 2002, he planned to
clean his Glock before the couple's planned excursion to the
shooting range with their 11-month-old boy the next day. He said he
laid out the cleaning equipment, then decided to visit a tanning
salon. When he returned half an hour later, he said, he found his
wife dead and believed she had decided to clean the gun for him and
had accidentally shot herself.

Lozano was indicted the following December, but two years later,
then-District Attorney Bruce Isaacks dropped the indictment,
swearing in an affidavit that two medical examiners had decided
that Viki Lozano committed suicide.

In 2009, three weeks after an investigative article about the
case appeared in the Denton Record-Chronicle, District Attorney
Paul Johnson took the case back to another grand jury and Lozano
was again indicted for murder.

Evidence at the trial showed that neither the Tarrant County
pathologist who performed the autopsy nor a Chicago medical
examiner who reviewed the autopsy report had determined that
suicide was the manner of death, as the affidavit stated.

Judge Bruce McFarling refused to allow the defense to let jurors
know about that affidavit, saying there was an issue of
trustworthiness in the sworn statement. Later, a special prosecutor
looked into a charge of lying under oath against Isaacks, but later
said he believed that Isaacks had been misled by a staff lawyer who
didn't want to prosecute the case.

The 56-page opinion addressed seven issues that Udashen brought
up in the appeal.

The first two issues asserted that the evidence was not legally
or factually sufficient for the jury to have convicted Lozano.
Circumstantial evidence is as valuable as direct evidence in
considering whether someone is guilty of a crime, according to the
opinion. The inferences the jury made after hearing the evidence
were reasonable.

"We defer to the jury's determinations of credibility and may
not substitute our judgment for that of the factfinder," the
opinion stated.

"We agree with the State that Appellant had the motive and
opportunity, that his inconsistent statements and implausible
explanations indicate guilt, and that additional evidence supports
the jury's finding of guilt."

The second two points of appeal asserted that Judge McFarling
erred by excluding from evidence a certified copy of Isaacks'
motion to dismiss the first indictment.

"The trial court was understandably concerned that [the Chicago
medical examiner's] report could not be produced and that the
missing or non-existent report formed the basis for the dismissal
motion and Isaacks' proposed testimony," according to the
opinion.

The appeals court overruled those issues.

The fifth issue asserted that there were two charges against
Lozano - one of intentionally causing his wife's death and the
other of committing an act clearly dangerous to human life with the
intent to cause serious bodily injury. The judge should have
included in the written instructions to the jury that the decision
would have to be unanimous for each of the charges but the
instructions appeared only once in the jury charge, the appeal
contended.

The court ruled that the two were not separate offenses but
different methods of committing the same offense. It overruled
those issues of appeal.

In the sixth and seventh issues, the appeal contended that
McFarling allowed "backdoor hearsay" in testimony by Texas Ranger
Tracy Murphree. The judge allowed Murphree to testify that after an
investigation, without mentioning what eyewitnesses told him, he
ruled the girlfriend out as a potential suspect in the murder.

The court ruled that Murphree was allowed this testimony and it
was not hearsay, and that the appellant lawyer did not object to
the right part of the testimony, so even had there been error it
was too late to bring it up in an appeal.

DONNA FIELDER can be reached at 940-566-6885. Her e-mail address
is dfielder@dentonrc.com.

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